U.S. v. DeLutis, s. 1098

• Decision Date: 06 December 1983
• Docket Number: 1188,1180,Nos. 1098,s. 1098
• Citation: 722 F.2d 902
• Parties: UNITED STATES of America, Appellee, v. Michael James DeLUTIS, a/k/a John Doe, Defendant, Appellant. UNITED STATES of America, Appellee, v. Adolf "George" EUNIS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Shirley Mae EUNIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 902

722 F.2d 902

UNITED STATES of America, Appellee, v. Michael James DeLUTIS, a/k/a John Doe, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Adolf "George" EUNIS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Shirley Mae EUNIS, Defendant, Appellant.

Nos. 1098, 1180, 1188.

United States Court of Appeals, First Circuit.

Argued Sept. 12, 1983.

Decided Dec. 6, 1983.

Judd J. Carhart, Boston, Mass., with whom Carhart, Bonistalli & McCarthy, Boston, Mass., was on brief, for Michael James DeLutis, a/k/a John Doe.

Alfred Paul Farese, Everett, Mass., with whom Ronald Ian Segal, Concord, N.H., and John Tramonti, Jr., Providence, R.I., were on brief, for Adolf "George" Eunis and Shirley Mae Eunis.

Patty Merkamp Stemler, Attorney, Dept. of Justice, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., and Edwin J. Gale, Sp. Atty., Providence, R.I., were on brief, for appellee.

Before CAMPBELL, Chief Judge, COWEN ^* and SKELTON, ^* Senior Circuit Judges.

SKELTON, Senior Circuit Judge.

The appellants, Michael DeLutis, George Eunis and wife, Shirley Eunis, were convicted in the United States District Court for the District of Rhode Island, after a jury trial, of conspiracy to distribute and to possess with intent to distribute cocaine (Count 1), in violation of 21 U.S.C. 846. Also, appellants George and Shirley Eunis were convicted on two counts each charging possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1), and they were convicted on two and one counts respectively charging use of a telephone to facilitate the distribution of cocaine, in violation of 21 U.S.C. 843(b). In addition, George Eunis was convicted of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). Appellant DeLutis was sentenced to 18 months' imprisonment. Appellant George Eunis was sentenced to a total of eight years' imprisonment and three years' special parole. He was sentenced to five years' imprisonment on the conspiracy count and to concurrent terms of three years' imprisonment on each of the substantive counts, to be followed by three years' special parole. The conspiracy sentence was ordered to run consecutively to the substantive sentences. Shirley Eunis was sentenced to concurrent terms of two years' imprisonment on each count, to be followed by three years' special parole.

The evidence shows that George and Shirley Eunis were cocaine distributors operating out of Johnston, Rhode Island. They purchased the cocaine from time to time from Donald Taglianetti and his cousin, Raymond Cardullo, in Ft. Lauderdale, Florida. ¹ Their practice was to obtain the cocaine, divide it, and then sell it to several local distributors, including one Alfred Smith who consumed some of it and sold the rest for a profit. Beginning on December 21, 1981, Smith made several trips to Ft. Lauderdale with George Eunis to get a supply of cocaine, which was then transported to Rhode Island in Smith's suitcase and upon arrival Smith would hand over the cocaine to Eunis for disposition. Eunis would then give some of the cocaine plus some cash to Smith for arranging and participating in the trips. Shirley Eunis accompanied Smith and George on some of the trips and participated in the cocaine transactions. These trips and cocaine distributions and sales continued from October 1981, to mid-March 1982.

Smith became an informant for the FBI and the Rhode Island state police in early February 1982. Thereafter, the FBI used surveillance and tape recordings to monitor Smith's cocaine dealings with the Eunises and their associates.

Smith and the Eunises made a fourth trip to Florida to purchase cocaine on February 13, 1982. The main purpose of the trip was to familiarize Shirley with the business so that she could take charge of it when George left on February 16, 1982, to serve a prison sentence for an offense not related to the instant case. Cocaine was purchased on this trip from Taglianetti by George who gave it to Smith to transport to Rhode Island. On arrival in Rhode Island, Smith returned the cocaine to George. ²

The final trip to Florida was made by Smith and Shirley on March 13, 1982. On that trip, they purchased cocaine from Taglianetti, which was paid for in cash by Shirley. She gave the cocaine to Smith, who transported it to Rhode Island. Shirley was met at the airport on Sunday, March 15, 1982, by a friend, Denise Marsalla, who took her home. Smith followed in a separate car. Upon arriving at Shirley's house, Smith opened his suitcase and delivered the cocaine to Shirley who paid Smith in cash. Smith then left the house and signalled to waiting officers, who entered the house with a search warrant and arrested Shirley. The officers then searched the house and found the bag of cocaine in the kitchen closet, $2,500 in cash on the table, a scale, Shirley's airline tickets and baggage stubs for the Florida trip, and various narcotic paraphernalia.

While the search was being conducted, the telephone rang and agent William Shay answered, and a man asked for Shirley. Shay answered that Shirley was busy. The caller then asked Shay to have Shirley call "Mike," and he left a phone number. He told Shay that it was important and that he was waiting around. Then he asked Shay, "is the stuff in?" Shay replied that it was. About an hour later Shay telephoned Mike and told him that Shirley said for him to come on over. Mike then said, "is the stuff ready?" and Shay told him that it was. About twenty minutes later, appellant DeLutis came to the Eunises' home and identified himself as "Mike." Shay recognized DeLutis' voice as that of the telephone caller and placed DeLutis under arrest. Shay seized nearly $5,000 in cash from DeLutis' person. After DeLutis was given Miranda warnings, he stated that he had come to pay a gambling debt.

Appellant DeLutis was indicted in Count 1 of the indictment for conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. ³ He was tried before a jury and convicted on the evidence set forth above.

DeLutis contends on appeal that the evidence is insufficient to show that he was a party to the conspiracy or that he even had any knowledge that a conspiracy existed. He says further that there was no evidence that he intended to agree to a conspiracy nor that he intended to commit the substantive offense charged. Of course, it is clear from circumstantial evidence that a conspiracy as charged in the indictment did in fact exist between the Eunises, Smith, Taglianetti and others. However, the sole question before us as far as DeLutis is concerned, is whether or not he was a party to it.

This court recently held in United States v. Flaherty, 668 F.2d 566, 580 (1st Cir.1981) that in a conspiracy case the government must prove beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute. The court held further that two types of intent must be proved: intent to agree and intent to commit the substantive offense. The agreement may be proved by circumstantial evidence.

In the instant case, there is no direct or circumstantial evidence of any express agreement by DeLutis showing an intent to agree to the conspiracy as charged, nor showing an intent to commit the substantive offense of distributing cocaine or of possessing with intent to distribute cocaine. Therefore, it appears that if the government is to establish either type of intent, it must do so by resorting to inferences from the evidence. The only evidence in the case from which the necessary inferences must be made was DeLutis' telephone conversations with agent Shay and his trip to Shirley's house with nearly $5,000 in cash on his person. This evidence shows an isolated or single act that is comparable to single sales or purchases of narcotics or other isolated single acts discussed below in connection with court decisions where such acts, without more, have been held to be insufficient to convict the accused as a coconspirator in a narcotics conspiracy case. In this regard, we have held that sufficient proof of specific intent or knowledge or acquiescence in a larger conspiratorial scheme ordinarily is not supplied by inference from one isolated act. United States v. Hernandez, 625 F.2d 2 (1st Cir.1980). In United States v. Magnano, 543 F.2d 431 (2nd Cir.1976), cert. denied sub nom. DeLutro v. United States, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977) the court held that a single act is insufficient to link a defendant with an overall conspiracy when there is no independent evidence tending to show that the defendant had some knowledge of the broader conspiracy, and when the single transaction is not in itself one from which such knowledge might be inferred. In the instant case, there is no independent evidence that DeLutis had any knowledge of the conspiracy of the other defendants to distribute cocaine or to possess with intent to distribute cocaine. Furthermore, there was no single act of DeLutis from which such knowledge might be inferred.

If it can be inferred from the evidence that DeLutis went to Shirley Eunis' house for the purpose of buying cocaine from her, the fact remains that he did not purchase any of the narcotic nor even offer to do so. But even if he had bought some cocaine on that occasion, his single purchase, without more, would not be sufficient to infer that he had knowledge of the conspiracy nor an intent to participate in it. We held in United States v. Izzi, 613 F.2d 1205 (1st Cir.1980) that a single sale of drugs without more does not establish a conspiracy. In that case, Judge Bownes in speaking for the court said:

A single sale of drugs without more does not establish a conspiracy. United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978); United States v. Varelli, 407 F.2d 735, 748 (7th Cir.1969), cert. denied sub nom. ...